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Friday, March 15, 2013

The Cautionary Instruction: The trial penalty

The Pittsburgh Post-Gazette/Ipso Facto
March 15, 2013

In the courtroom and during plea negotiations, many practitioners warn of the “trial penalty.” Also known as the trial tax, this widely lamented tool of prosecutors suggests that sentences for people who go to trial are often greater than sentences for similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Ohio State University Law Professor Douglas A. Berman wrote recently that if the Department of Justice was truly concerned about unwarranted sentencing disparity in financial fraud cases… (rather than with)…defendants who have the temerity to exercise their trial rights…then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal.”

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial.

What if the penalty after trial was, on average, actually less than pleading guilty? One expert suggests that post-trial sentences are lower than plea bargains. University of Pennsylvania economist David S. Abrams’ found, “The empirical work in this article points to longer expected sentences from plea bargains than from trial. This is in sharp contrast to the ‘trial penalty’ theory.”

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.